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Jeevan Diesels & Electricals Ltd vs Commissioner Of Central Excise

Customs Excise and Service Tax Appellate Tribunal30 June 2015

Ratio decidendi

The rule this decision rests on

Where a pre-deposit condition under Section 35F of the Central Excise Act is shown to have been complied with, by payment through the RG-23 account and by a further deposit made before the Tribunal, the appellate authority's dismissal of the appeal for non-compliance with the pre-deposit order cannot stand; the matter must be remanded to the Commissioner (Appeals) for decision on merits after affording the appellant an opportunity of hearing. Delay in making a pre-deposit payment before the appellate authority may be condoned where the deposit has in substance been made.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.E/EH/40279/2015 & E/40275/2015

[Arising out of Order-in-Appeal No.17-19/2015 (CXA-II) dt. 2.1.2015 passed by the Commissioner of Central Excise (Appeals-II), Chennai]

Jeevan Diesels & Electricals Ltd. Appellant

Versus

Commissioner of Central Excise, Pondicherry Respondent

Appearance:

Shri K.S. Jain, M.D For the Appellant

Shri R.Subramaniyam, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 30.6.2015

FINAL ORDER No.40715/2015

Per R. Periasami

1. As the issue lies on a narrow compass, after dispensing with the requirement of predeposit, the main appeal is taken up for hearing and disposal.

2. After hearing both sides, we find that Commissioner (Appeals) in the impugned Order No.17 to 19/2015 dt.2.1.2015 dismissed a batch of three appeals for non-compliance of predeposit order in terms of amended provisions of Section 35F of the Central Excise Act which came into effect from 6.8.2014. In the impugned order, appellant's appeal is listed at Sl.No.3 as Appeal No.118/2014 dt. 28.8.2014.

3. Shri K.S. Jain, Managing Director of the appellant appears for the appellants and submits that they have complied with predeposit as per Section 35F of the Act. He further submits copies of extracts of returns filed under Rule 9 of CCR dt. 7.11.2014 and intimated the Commissioner (Appeals) vide their letter dt. 14.11.2014 as to the payment of pre-deposit of Rs.28,274/- (7.5% of the demand) whereas the Commissioner (Appeals) has not considered the same.

4. Taking into account that appellants have predeposited the mandatory penalty by debiting in RG-23 Account and also taking into account further debit of an amount of Rs.9,434/- (2.5% of the demand) as predeposit before this Tribunal, we are of the view that appellants have complied with the predeposit whereas the Commissioner (Appeals) dismissed the appeal for non compliance of interim order and not decided the issue on merits. The delay in making pre-deposit payment before Commissioner (Appeals) is condoned. The appeal is remanded to Commissioner (Appeals) to hear the case on merits after affording an opportunity of hearing to the appellant and pass orders in accordance with law. Appeal is allowed by way of remand in the above terms. EH application is disposed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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